Khatib v Director of Public Prosecutions (NSW) & Ors

1. [1]

   WHITE JA: This is a summons for judicial review of an order of a judge of the District Court (Judge O’Rourke SC) dismissing an appeal by the applicant from his conviction on 14 July 2021 in the Local Court on a charge of sexual touching (Crimes Act 1900 (NSW) s 61KC).

2. [2]

   The appeal to the District Court was by way of rehearing on the basis of the evidence given in the Local Court (Crimes (Appeal and Review) Act 2001 (NSW) s 18).

3. [3]

   No appeal lies from the orders of the District Court. By reason of s 176 of the District Court Act 1973 (NSW), judicial review in the supervisory jurisdiction of the Supreme Court is confined to review on the grounds of jurisdictional error.

4. [4]

   The applicant was an Ola Rideshare driver. The complainant gave evidence that, in the early hours of 19 September 2020, whilst the applicant was driving her from Newtown to Freshwater, she was sitting in the passenger seat of the car. They agreed that the applicant would drive her to her home in Freshwater for $35, which was the amount of cash that she had available. During the trip, the applicant started touching her leg and trying to hold her hand. The applicant stroked the top and side of her right leg with his left hand whilst her hands were in her lap holding her phone. She placed the $35 in cash in a centre console and the applicant took $10 and tried to put it in her hands. She placed the $10 in the passenger door trim and when they were stopped at a set of lights he leant over and took the note and put it back between her legs.

5. [5]

   The Local Court magistrate accepted the complainant’s evidence. The applicant did not give evidence. The transcript and video of his electronically recorded interview with police at the Auburn Police Station on 24 September 2020 was tendered. The magistrate found that the applicant’s version of events in that interview did not give rise to a reasonable doubt. Her Honour found that the applicant’s version was not credible and was untruthful. She gave extensive reasons for that conclusion.

6. [6]

   The applicant appealed from his conviction to the District Court. Judge O’Rourke SC directed herself as to the nature of the appeal in accordance with Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39 at [17]-[22]; Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245; (2017) 269 A Crim R 298 at [69]; and McNab v Director of Public Prosecutions (NSW) (2021) 106 NSWLR 430; [2021] NSWCA 298 at [24] and [83]-[90]. Her Honour gave herself a direction pursuant to s 293A of the Criminal Procedure Act 1986 (NSW) as to any inconsistencies in the complainant’s account.

7. [7]

   Like the magistrate, the judge also found that the evidence of the complainant was entirely persuasive and compelling (at [24]) and was strongly supported by the evidence of her father (at [25]) to whom the applicant made a complaint when the facts were fresh in her memory (Evidence Act 1995 (NSW) s 66). The father’s evidence of the complaint was unchallenged. Her Honour said that she took into account inconsistencies in the complainant’s account for which the applicant contended, which she regarded as immaterial, and found the Crown case to be overwhelming and satisfying her beyond reasonable doubt that the applicant did what he was alleged to have done on the basis of the complainant’s evidence. Her Honour then considered whether the applicant’s version of events in his interview with police raised a reasonable doubt as to his guilt. She gave reasons as to why it did not. Her Honour described various inconsistencies in the applicant’s interview, both between what he said at different parts of the interview, and with some objectively observable facts (eg at [43]).

8. [8]

   The applicant raises 16 grounds of review, which may be grouped as follows.

Apprehended bias: Ground 9

1. [9]

   Ground 9 asserted apprehended bias on the part of the judge. The applicant contended that:

Denials of procedural fairness (Grounds 3, 4, 5, 6, 11 and 12)

1. [10]

   Ground 3 asserted that there was a denial of procedural fairness because the judge erred by finding that the magistrate did not commit an error of law by putting words in the complainant’s mouth and leading her in examination-in-chief. This was also said to be a constructive failure to exercise jurisdiction. As a ground of denial of procedural fairness, it goes nowhere as it is not a complaint about the procedure at the hearing in the District Court. In the District Court, the applicant was represented by senior and junior counsel. They made no submission on the question. This ground is considered below in relation to the grounds asserting a constructive failure to exercise jurisdiction.

2. [11]

   Ground 4 asserted a denial of procedural fairness because the judge refused to hear the applicant at the end of the hearing and said “no” when he asked if he could say something. This was at a time when he was represented by counsel.

3. [12]

   Ground 5 asserted a denial of procedural fairness because it is said that “the judge had incorrect external information (which is not in evidence) concerning the age of the complainant which affected her final judgment”.

4. [13]

   Ground 6 asserted a denial of procedural fairness in that, so it is said, the judge failed to respond to a substantial, clearly articulated argument, relying upon established facts. The alleged failure was that the judge did not address submissions concerning the asserted failure by the magistrate to give reasons concerning whether the elements of the offence were not made out by reason of either an absence of mens rea or because the complainant consented to the conduct constituting sexual touching. Again, this is not an allegation of denial of fairness in procedure and will be considered under the heading of “Constructive failures to exercise jurisdiction” below.

5. [14]

   Grounds 11 and 12 also asserted failures to respond to allegedly substantial, clearly articulated arguments, and will be dealt with under the heading immediately below.

Constructive Failures to Exercise Jurisdiction: Ground 3, 6, 11, 12, 14 and 15

1. [15]

   Ground 3 asserted that the judge failed to address the applicant’s submission that the magistrate had asked the complainant leading questions during her examination-in-chief and put words in the complainant’s mouth.

2. [16]

   Ground 6 is referred to at [13] above.

3. [17]

   Ground 11 asserted that the judge failed to address the applicant’s submission that the magistrate’s finding was not supported by any evidence concerning stroking of the complainant’s inner thigh on the Harbour Bridge.

4. [18]

   Ground 12 asserted that the judge did not address the applicant’s submission concerning a part of the complainant’s evidence where it is said that the complainant made contradictory statements and gave conflicting answers during cross-examination.

5. [19]

   Ground 14 asserted that the judge did not rule on the applicant’s submission that the magistrate stopped the complainant from giving evidence about a contemporaneous message “all good Josh” which, so it was contended, would disprove the elements of the alleged offence.

6. [20]

   Ground 15 asserted that the judge failed to address the applicant’s denial of procedural fairness submissions and apprehension of bias submissions on the part of the magistrate concerning the magistrate’s alleged interference with cross-examination of the complainant which resulted in the complainant’s changing her evidence.

Irrationality or legal unreasonableness: Ground 7

1. [21]

   Ground 7 asserted that the judge made an irrational or legally unreasonable finding of fact, namely, that the applicant had sexually touched the complainant’s inner thigh in circumstances where she was seated with her hands on her lap such that the stroking of her thigh would be impossible as her forearm was blocking her thigh.

No evidence for a finding of fact: Ground 10

1. [22]

   Ground 10 is related to ground 14. It asserted that it was not open for the judge to make her finding that the message “all good Josh” had been sent before the car was travelling on the Harbour Bridge.

2. [23]

   Plainly, this ground does not raise a question of jurisdictional error, even if the finding were erroneous.

Misapprehension of the nature and limits of the primary judge’s function and mistaken denial of jurisdiction: Grounds 1 and 2

1. [24]

   Ground 1 asserts that the judge relied on inaccurate Crown submissions to discredit the applicant instead of relying on evidence given in the Local Court and thus did not conduct the appeal by way of rehearing on the basis of the evidence given below.

2. [25]

   Ground 2 asserted that the judge misapprehended the nature of the appeal by giving herself a direction under s 293A of the Criminal Procedure Act where the appeal was not a de novo appeal and that the direction was only required to be given during the original trial.

Errors of law in the conduct of the appeal: Grounds 8, 13 and 16

1. [26]

   Ground 8 asserted that the judge erred in finding that the alleged stroking of the top and right side of the complainant’s thigh met the legal definition of sexual touching in the Crimes Act (s 61HB(2)(a) and (b)).

2. [27]

   Ground 13 asserted that both the magistrate and the judge failed to address the mens rea requirements for proving an offence under s 61KC(a) of the Crimes Act and failed to give adequate reasons as to how they were satisfied beyond reasonable doubt that the complainant did not consent at the time of committing the alleged offence.

3. [28]

   Ground 16 asserted that the judge failed to have regard to s 133(2) of the Criminal Procedure Act by not mentioning the elements of s 61KC(a) of the Crimes Act, and did not consider s 106(a) and (e) of the Evidence Act concerning witness reliability and credibility where the prosecution case relied on a single witness.

Hearing in the District Court

1. [29]

   As has been noted, the applicant was legally represented in the Local Court and in the hearing in the District Court. At the conclusion of the hearing in the District Court the applicant said:

2. [30]

   That evening, the applicant, without leave, sent an 18 page submission to the judge.

3. [31]

   A party has no right, without leave, to make additional submissions in writing after the conclusion of the hearing of an appeal. The judge could properly have ignored the submission. The Crown had had no opportunity to respond to it. The judge nonetheless considered the submission. Her Honour said:

4. [32]

   Although the applicant had legal representation in the Local Court and the District Court, he appeared for himself in this Court. It is clear from his formulation of grounds of review that he was cognisant of the fact that judicial review lay only on the grounds of jurisdictional error and sought to bring his application on those grounds.

5. [33]

   For the reasons which follow, no jurisdictional error is established. In substance, the applicant seeks merely to challenge the findings of fact in the Local Court and the District Court.

The Judge’s Reasons

1. [34]

   O’Rourke SC DCJ directed herself that an appeal to the District Court under s 18 of the Crimes (Appeal and Review) Act requires a demonstration of factual, legal or discretionary error which refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected or, put negatively, that the trial judge’s decision should not be set aside unless the appellate judge is satisfied that the judgment is wrong. Her Honour also said that a miscarriage of justice warranting intervention may occur in the absence of error in the ordinary meaning of that term and that the requirement that the appellant demonstrate error does not reverse the onus of proof. The prosecution at all times bore the onus of establishing guilt beyond reasonable doubt. The extent of the review of the evidence depends on the circumstances of each case and the kind of error alleged. It is clear that the judge reviewed the whole of the evidence before the Local Court.

2. [35]

   The applicant does not challenge the judge’s directions as to the nature of the appellate review.

3. [36]

   After reviewing the facts, the judge addressed the submissions made by Mr Özen SC for the applicant, and, as indicated above, also addressed the submissions made by the applicant personally after judgment had been reserved.

4. [37]

   Her Honour said:

5. [38]

   The judge then addressed the account given by the applicant in his ERISP (the applicant not having given evidence at the trial). For various reasons that, in substance, are not challenged on the application for judicial review, the judge found that the applicant’s account in his ERISP did not give rise to a reasonable doubt as to his guilt. Her Honour concluded:

Apprehended bias: Ground 9

1. [39]

   As noted above, the applicant submitted that the judge showed interest in convicting him because she suggested “sect 293A and sect 66 from the bench to the crown to use and apply them in the case that goes against the appellant case [sic] even though these acts were not mentioned in the crown submissions in which [sic] didn’t give the appellant enough time to reply”.

2. [40]

   The contention seems to be that a reasonable bystander might apprehend that the judge might not have brought an impartial mind to the resolution of his appeal because of her Honour’s unprompted intimation that she should direct herself pursuant to those provisions.

3. [41]

   In oral submissions, the applicant referred to a statement made by the judge during the submissions of Mr Özen SC where the judge said “she also gives complaint evidence under s 66”. Mr Özen SC’s response was:

4. [42]

   In the course of submissions of counsel for the Crown, the judge also observed that s 66 applied to the evidence of the complainant’s father with which counsel for the Crown agreed.

5. [43]

   No issue was, or could be taken with the accuracy of the judge’s reference to s 66. That section provides:

6. [44]

   The father’s evidence of complaint was unchallenged. It was clearly relevant to the issue the judge had to decide. No reasonable person could consider that the judge might have been biased by referring to the provision.

7. [45]

   The applicant also asserted that there was a ground for apprehension of bias on the part of the judge because she referred to s 293A of the Criminal Procedure Act. In the course of submissions of counsel for the Crown there was the following remark:

8. [46]

   Mr Özen SC (incorrectly referred to in the transcript as “the Appellant”) agreed.

9. [47]

   These exchanges could not possibly give rise in the mind of an hypothetical reasonable observer that the judge might not bring an impartial mind to the resolution of the issues before her. Rather, they show that the judge was engaging with those issues.

Denial of procedural fairness: Grounds 4, 5 and 6

1. [48]

   I leave aside for the moment the grounds of denials of procedural fairness that can also be characterised as asserted constructive failures to exercise jurisdiction. Ground 4 is that the judge refused to hear the applicant at the end of the hearing and said “no” when he asked if he could say something. The exchange is quoted at [29] above. Earlier in the hearing the applicant had sought to be heard for himself. There was the following exchange:

2. [49]

   (Mr Abbas was junior counsel for the applicant).

3. [50]

   The judge was right to refuse the applicant leave to address the Court himself when he had legal representation. In Malouf v Malouf (2006) 65 NSWLR 449; [2006] NSWCA 83, Mason P, with whom McColl and Bryson JJA agreed, said:

4. [51]

   Moreover, as the judge observed, a litigant who seeks to put submissions that his or her counsel or solicitor has not put, can do himself or herself a disservice. Such a submission can weaken the submissions that have been put by the party’s legal representative. They might be untenable and thus weaken the party’s credibility and the credibility of the submissions put on his or her behalf in the eyes of the tribunal. They might invite questioning from the Bench to which the party, having taken it upon himself or herself to make submissions, is obliged to respond to his or her detriment.

5. [52]

   Thus, there is good reason that a party to litigation is ordinarily bound by the conduct of his or her counsel and the manner in which counsel chooses to conduct and present the party’s case to the Court. In Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [114], French CJ, Hayne, Kiefel and Bell JJ said “it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel”.

6. [53]

   After the applicant dismissed his legal representatives, he provided his own written submissions to the judge. Her Honour took those submissions into account, although it is doubtful that she should have done so. He cannot complain that he was denied procedural fairness.

7. [54]

   Ground 5 alleged a denial of procedural fairness in that it was said that the judge had “incorrect external information (which is not in evidence) concerning the age of the complainant which affected her final judgment”.

8. [55]

   No evidence was adduced at the trial concerning the complainant’s age. The magistrate, having observed the complainant’s giving evidence and having observed the applicant in court and on his ERISP referred to them respectively as a “young woman” and a “middle-aged man”. A similar observation was made by the judge during Mr Özen SC’s submissions where her Honour referred to him as “…an older driver that’s driving her home”.

9. [56]

   No doubt the judge’s statement was based upon the observation of the magistrate who had seen the complainant give evidence and who had seen the applicant in court and on his ERISP. Whether or not the magistrate or the judge was mistaken about the difference in age between the complainant and the applicant, there was no denial of procedural fairness. Nor was any error in this regard a jurisdictional error. Their respective ages was not a “central or critical” element in the disposition of the appeal (Day v SAS Trustee Corporation [2021] NSWCA 71 at [37]). It was not an issue that was raised as a clearly material issue for determination by the magistrate or the judge.

10. [57]

    Having reviewed the transcript of the hearing in the District Court, I am satisfied that there was no denial of procedural fairness. Both the Crown and counsel for the applicant were fully and courteously heard. No issue of substance raised was not addressed.

Constructive failure to exercise jurisdiction: Grounds 3, 6, 11, 12, 14 and 15

1. [58]

   Ground 3 contended that the judge erred by finding that the magistrate did not commit an error of law by putting words in the complainant’s mouth and leading her during her examination-in-chief.

2. [59]

   The judge made no such finding. As I understand the contention, it is not that the judge made such a finding, but that she erred in not making a finding that the magistrate did commit such an error. Any such error would not be an error outside jurisdiction.

3. [60]

   The evidence in the Local Court which gives rise to the applicant’s contention was as follows:

4. [61]

   The magistrate was obviously concerned as to whether the complainant had heard the question which had been taken over audiovisual link. There were other voices on the line.

5. [62]

   The magistrate did not intervene to suggest an answer to the complainant.

6. [63]

   Counsel for the applicant made no submission to the judge that the magistrate’s question indicated bias, or impropriety on the part of the magistrate in her conduct of the hearing. But in his written submissions, delivered without leave after the conclusion of the hearing, the applicant submitted that the magistrate had interfered with the complainant’s evidence and had led the complainant to change her evidence from “yes” to “no” and that this was because the magistrate did not like the first answer, which was consistent with a version that the applicant said he had provided in his ERISP. In his written submissions, he submitted that the magistrate thought that she had to interfere; an allegation of actual or apprehended bias.

7. [64]

   No such contention had been advanced at the hearing before the judge. The judge was not required to address this submission, which was provided without leave.

8. [65]

   An allegation that the exchange quoted above showed that the magistrate was actually biased, or that a reasonable lay observer might apprehend that she might be biased, would need to be clearly articulated. Responsible counsel would not have advanced such a submission and did not. That the applicant, in his written submission delivered without leave, alluded to such a contention, did not mean that the judge committed jurisdictional error by failing to address it.

9. [66]

   Ground 6 asserts that the judge failed to respond to a substantial and clearly articulated argument concerning the magistrate’s failure to give reasons with reference to the facts concerning the basic elements of the offence of mens rea and lack of consent.

10. [67]

    The short answer to this submission is that, both in the Local Court and in the District Court, counsel appearing for the applicant accepted that if the complainant’s version of the facts were accepted, the elements of the charge would be established. That concession was obviously right. The judge did not commit jurisdictional error by acting on the concession.

11. [68]

    Ground 11 asserted that the judge failed to respond to an argument that there was no evidence concerning stroking of the complainant’s inner thigh on the Harbour Bridge. The magistrate found that the applicant touched the complainant’s inner thigh. The complainant gave evidence to that effect. The judge made no error in accepting that evidence, let alone a jurisdictional error.

12. [69]

    Ground 12 asserts that the judge failed to respond to a substantial and clearly articulated argument relying upon established facts by ignoring the applicant’s submission that the complainant made contradictory statements and gave conflicting answers during cross-examination.

13. [70]

    The judge did not ignore the submission. She rejected it. Her Honour found that such inconsistencies as there were in the complainant’s evidence (which were minor) did not affect the credibility of her account.

14. [71]

    Ground 14 contended that the judge constructively failed to exercise jurisdiction by not ruling on the applicant’s submission that he was denied procedural fairness by the magistrate’s stopping the complainant from giving evidence concerning the contemporaneous message “all good Josh” which he contended would disprove elements of the offence. It is related to ground 10 ([22]-[23] above).

15. [72]

    This ground relates to a text message sent by the complainant to a friend, Joshua, at 2.43am saying “Sry Josh, I’ve worked it out. Don’t stress. I’ve called Hannah but it’s all good”. The applicant’s submission was that this message contradicted the complainant’s evidence that she was being touched without her consent.

16. [73]

    The submission was made in the applicant’s written submissions delivered without leave after the hearing. It was not the subject of submissions made by counsel for the applicant before the judge in the District Court. There were obvious reasons for that. Although she was asked questions in examination-in-chief by the prosecutor in the Local Court in relation to text messages to Joshua, she was not asked about the particular text message either in chief or in cross-examination. Any submission in relation to that text message was not a clearly articulated argument that the judge was required to address. At best, it was one matter that might go to the credibility of the complainant, but it did not detract from an overall assessment of the complainant’s credibility.

17. [74]

    By grounds 12 and 15, the applicant contended that the judge failed to respond to his substantial, clearly articulated arguments that the complainant had made contradictory statements and had given conflicting answers during cross-examination (ground 12) and that the magistrate had interfered with her cross-examination that resulted in her changing her answers (ground 15).

18. [75]

    No such submissions were advanced during the hearing of the appeal before the judge. They were not substantial and clearly articulated arguments based on established facts with which the judge was required to deal. Inconsistencies in the complainant’s evidence is not a sufficient basis for challenging the magistrate’s and the judge’s acceptance of the complainant’s credibility. No submission along these lines was advanced during the hearing before the judge. In his late and unauthorised submissions, the applicant contended that the magistrate had improperly intervened in the cross-examination of the complainant so as to allow her an opportunity to change her answers that otherwise would have been exculpatory, and that the magistrate had put words into the complainant’s mouth and stopped evidence being given that would have proved his innocence. He submitted that this showed that the magistrate did not want to hear the evidence.

19. [76]

    Some of the interruptions of the magistrate were clearly referable to the fact that her Honour was taking a handwritten note of the evidence being given. Her Honour asked the complainant to stop so that she could complete her note taking.

20. [77]

    Some of the interruptions were explicable by doubt as to whether the question had been heard (see [61] above). None of the matters referred to indicated any impropriety in the conduct of the hearing in the Local Court that would justify setting aside the conviction on the grounds that there had been a denial of procedural fairness in that court.

21. [78]

    Even if the judge had been required to address the submissions made without leave, her Honour did not commit jurisdictional error by not addressing submissions which, although asserting denial of procedural fairness in the Local Court, provided no substantial basis for the allegation.

Legal unreasonableness: Ground 7

1. [79]

   Ground 7 is described at [21] above. It is no more than a challenge to a finding of fact based on acceptance of the complainant’s evidence. It discloses no irrationality or unreasonableness.

No evidence for a finding of fact: Ground 10

1. [80]

   Ground 10 is described at [22] above.

2. [81]

   The challenged finding was:

3. [82]

   A finding of fact for which there is no evidence is an error of law. It is not on that account a jurisdictional error: NRMA Insurance Ltd v Ainsworth [2011] NSWCA 292; (2011) 59 MVR 195 at [12]-[13]. A judge has jurisdiction to make errors of both fact and law. In any event, there was no error.

Misapprehension of judge’s function and mistaken denial of jurisdiction: Grounds 1 and 2

1. [83]

   Grounds 1 and 2 have been described at [24] and [25] above.

2. [84]

   In support of ground 1 the applicant submitted that the judge erred by taking into account the Crown’s submissions as to his credibility instead of relying on the applicant’s ERISP.

3. [85]

   The judge said:

4. [86]

   It is clear that the judge considered the ERISP for herself. She did not simply accept the Crown’s submission as to what it revealed without satisfying herself as to the accuracy of the submission. If any parts of her Honour’s findings were not substantiated by the ERISP that would not amount to jurisdictional error.

5. [87]

   Ground 2 is described at [25] above.

6. [88]

   Section 293A is contained in subdiv 4 of Div 1 of Pt 5 of Ch 6 of the Criminal Procedure Act. Section 290(1) provides that Div 1 applies to proceedings in respect of a prescribed sexual offence, including committal proceedings.

7. [89]

   Section 293A in terms applies only to directions to be given to a jury. The applicant submitted that by giving herself a direction in accordance with s 293A the judge impermissibly converted what should have been an appeal by way of rehearing into an appeal de novo.

8. [90]

   I do not accept that submission. The judge had to determine whether the magistrate committed error in accepting the complainant’s evidence. In so determining, the judge had to consider whether asserted inconsistencies in the complainant’s evidence indicated that the substance of her complaint was untruthful and that the magistrate should have so found. It was appropriate that the judge should have reminded herself of s 293A in making that determination. The directions to be given to a jury under s 293A reflect what a judge or magistrate sitting alone should consider when assessing a complainant’s credibility.

Errors of law in the conduct of the appeal: grounds 8, 13 and 16

1. [91]

   These grounds are described at [26]-[28] above.

2. [92]

   As to ground 8, it was conceded in the Local Court and appeal to the District Court that, if the complainant’s account were accurate, sexual touching had occurred. The judge did not commit any error, let alone jurisdictional error, by proceeding accordingly. Even if the judge were wrong in deciding that the touching described by the complainant was sexual touching within the meaning of s 61KC of the Crimes Act, that would be an error within jurisdiction.

3. [93]

   But the judge committed no error. Mr Özen SC conceded that, if the primary judge were satisfied that the complainant’s account of events were accurate, then the applicant’s stroking of the complainant’s inner and upper right thigh was a sexual touching. The primary judge noted (at [15]) that there was no issue that what was alleged constituted sexual touching.

4. [94]

   Ground 13 is described at [27] above.

5. [95]

   The applicant submitted:

6. [96]

   Contrary to the applicant’s submission, the asserted error, even if established, would not be jurisdictional error. Nor was the court’s satisfaction that the complainant did not consent to the touching a jurisdictional fact (Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [28]).

7. [97]

   Rather, it was a fact that the Local Court, and on appeal the District Court, had jurisdiction to determine.

8. [98]

   The judge did address the issue of mens rea, albeit indirectly and shortly. At [43] and [44] of her Honour’s reasons quoted at [38] above, her Honour considered but rejected the applicant’s statements in his ERISP and concluded that “clearly” the complainant did not want his advances.

9. [99]

   Ground 16 is described at [28]. It comprises two parts. As to the first, there was no necessity for the judge to state the elements of the offence. As to the second, s 106 of the Evidence Act was irrelevant.

10. [100]

    For these reasons none of the grounds for judicial review is established. The amended summons for judicial review of the orders of the District Court of 20 September 2022 should be dismissed with costs.

11. [101]

    SIMPSON AJA: I agree with White JA.

12. [102]

    GRIFFITHS AJA: I agree with White JA.